THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.957 of 2004
JUDGMENT:
A.S.No.957 of 2004 is filed against the Judgment of the trial Court in O.S.No.6 of 2001 dated 12.11.2003.
2. One Muddasani Leela W/o. Srimanth Reddy filed suit for recovery of amount of Rs.3,06,000/- with future interest @ 24% per annum against Komirisetti Kanakaiah. The trial Court after considering the evidence on record and arguments of both sides decreed the suit in favour of the plaintiff. Aggrieved by the said order, the defendant in the suit filed an appeal and mainly contended that evidence of defendant was not considered while delivering Judgment and the suit was decreed only basing on the evidence of the plaintiff. He also stated that he issued two cheques bearing Nos.433372 and 433375 dated 26.09.2000 and 20.01.2001 respectively for an amount of Rs.30,000/- and Rs.40,000/- respectively. The 1st cheque was issued in the name of the father of the respondent and the 2nd cheque was issued in the name of the respondent herein. But, respondent denied the same.
3. The trial Court after considering the same granted decree for the entire amount. As the father of the respondent was close friend of appellant and on request of the appellant hand loan was given by him, taking the property of the appellant as mortgage and no promissory note was executed. Basing on the enquiry report submitted by the Branch Manager, 1st cheque was drawn by the respondent's father and the 2nd cheque was also drawn by him, though the said cheque was in the name of the respondent herein and it is clear that Rs.70,000/- was received by the respondent and his father. But, the trial Court wrongly observed that she has not received any amount. Though appellant requested the Court to permit him to pay balance loan amount of Rs.2,30,000/- on installment basis, it was not considered and decree was granted on mere assumptions and presumptions. Therefore, requested the Court to set aside the Judgment of the trial Court.
4. Heard arguments of both sides, perused the record. In plaint it is clearly stated that father of the plaintiff and defendant are close friends. In view of their close relationship, the defendant borrowed an amount of Rs.3,00,000/- on 04.01.2000 by mortgaging the house bearing No.4-3-216/8/1, 2 situated at Bhoomnagar locality of Peddapalli Town and also agreed to pay the said amount on or before 04.01.2001. But, the defendant failed to pay the amount even by the end of January, 2001. The plaintiff got issued legal notice on 16.01.2001. After receiving the legal notice, the defendant neither gave reply nor paid the suit amount. As such, she filed suit for recovery of amount with interest @ 24% from the date of filing of the suit till realization.
5. In the Written Statement filed the defendant he admitted execution of the equitable mortgage deed in favour of the plaintiff and further stated that there was no agreement between the plaintiff and defendant to pay the interest on the principle amount. As the defendant was very poor, he paid Rs.30,000/- vide Cheque bearing No.433372 dated 26.09.2000 in favour of the father of the plaintiff namely Shankar Reddy and issued another Cheque for Rs.40,000/- bearing No.433375 dated 20.01.2001 drawn on the State Bank of Hyderabad, branch at Peddapalli. But, the plaintiff suppressed the same and filed suit for entire amount and also claiming interest at an exorbitant rate and the defendant is not liable to pay future interest.
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6. Plaintiff was examined as P.W.1 and marked Exs.A1 to A3. Ex.A1 is the registered mortgage deed bearing No.6/2000. Ex.A2 is the office copy of the legal notice dated 16.01.2001. Ex.A3 is the postal acknowledgment. The defendant examined as D.W.1 and marked Ex.B1 dated 08.03.2003, letter issued by the bank authorities to the defendant. Plaintiff in her evidence stated that her father gave amount to the defendant and she was not doing money lending business and her father also not doing any money lending business. The counsel for the appellant objected that the suit itself is not maintainable, as she clearly admitted that amount was lent by his father to the defendant. During the evidence, she stated that she knows about the transaction between her father and the defendant, as they are friends. And she knows what was transpired at the time of giving loan by her father to the defendant. Therefore, the argument of the respondent counsel is not tenable and suit filed for recovery of amount is sustainable.
7. The defendant in the suit admitted the execution of the mortgage deed and also receiving of Rs.3,00,000/- from the father of the plaintiff towards hand loan. But, he mainly contended that he already re-paid Rs.70,000/- by way of two 4 cheques i.e, on 26.09.2000 and 20.01.2001 respectively and also filed letter issued by the Branch Manager on 08.09.2003. In the said letter it was specifically mentioned that Cheque No.433372 for Rs.30,000/- was issued in favour of M.Shakar Reddy. It was presented on 27.09.2000 and amount paid to the bearer. Cheque bearing No.433375 for Rs.40,000/- was issued in favour of the plaintiff and she presented cheque on the same day, amount was paid to her and the signature of the bearer is shown as M.Shankar Reddy. In the Written Statement, plaintiff father name was stated as Shankara Reddy and both the cheques were cashed and received by the plaintiff and her father. But, plaintiff suppressed the same and filed the suit for entire amount of Rs.3,00,000/- without deducting Rs.70,000/-.
8. In the mortgage deed i.e, Ex.A1, it was clearly mentioned that the amount was received for the family expenses and defendant agreed to pay the same without interest within one year from 04.01.2000, failing which the plaintiff is at liberty to sell the suit schedule property and recover the same. In this case, he could not re-pay the amount on or before 04.01.2001. But, paid Rs.30,000/- on 26.09.2000, it was well within time and Rs.40,000/- on 20.01.2001, it is after issuance of the legal 5 notice dated 16.01.2001. The trial Court observed that in a mortgaged suit the rate of interest shall not exceed 6% per annum and it was substituted by the Act 66 of 1956 for 9% per annum. But, the trial Court granted 12% per annum on the ground that the amount is not paid within the time agreed by the defendant. In view of the part payment made by the defendant and also as there is no much delay in the payment of the amount as legal notice was given on 16.01.2001 for non- payment of amount on or before 04.01.2001. Moreover, in the Ex.A1, it was clearly mentioned that there is no interest for the hand loan, in view of the close acquaintance between the father of the plaintiff and defendant. This Court finds that the interest granted @ 12% per annum is excessive and it is to be modified as 9% per annum. The counsel for the appellant also stated that he already deposited Rs.2,81,000/- and the said amount was also withdrawn by the respondent herein. This Court finds that it is just and reasonable to modify the Judgment and decree of the trial Court for an amount of Rs.2,30,000/- with interest @ 9% per annum from the date of filing the suit till the date of realization. As the appellant has paid certain amount, he is directed to pay the balance amount within 2 months from the date of receipt of a copy of this order.
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In the result, appeal is allowed and the order of the trial Court is modified and appellant is directed to pay balance amount within two months from the date of receipt of a copy of this order with interest @ 9% per annum from the date of filing of the suit till the date of realization.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATED: 11.11.2022 tri 7 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.957 of 2004 DATED: 11.11.2022 TRI 8